Evidence

Evidence is information or things that help to prove or disprove the existence of a fact. For example, a letter from an employer to an employee telling them they will not be given any more shifts could be used as evidence that the employee was dismissed. Evidence can be testimony by a witness, or documents such as emails, text messages, letters and recordings.

Who can give evidence for my case?

You should work out who you need to give witness evidence in your case. Evidence will usually be given in an affidavit. An affidavit is a written statement where the contents are sworn or affirmed to be true. You will need to prepare your own affidavit, because you will be your main witness. You may also be able to get affidavits from:

• work colleagues
• your manager or managers
• anyone else who can give evidence about the reasons you were dismissed
• anyone else who can give evidence about any pain and suffering you experienced because you were dismissed (for example, your doctor).

If a witness makes an affidavit for your case, they will also need to give evidence at the hearing. It is possible to subpoena them to make sure they turn up. A subpoena is a court order requiring someone to attend a hearing or produce documents related to the case.

For information on how to prepare a subpoena to attend, see Subpoenas.

How do I prepare an affidavit?

You can get a copy of an affidavit form from the General federal law forms page of the Federal Circuit and Family Court of Australia ​website.

When preparing an affidavit, you need to consider what evidence you or your witness can give that is relevant to your case. For example, an affidavit that supports your case might include evidence about:

• your work history and performance
• anything that was said by your employer about the reason you were dismissed.

You can also attach documents to your affidavit (called 'annexures') as evidence to support your case, such as:

• medical certificates
• performance reviews
• correspondence, such as emails and letters from colleagues, managers and your employer.

For more information on affidavits, see Affidavits.

How can I get documents I don't have?

If you don't have the documents that you need for your case, you may be able to get an order from the Court telling the person who has the documents to produce them to the Court. This is called a "Subpoena to Produce." Once the documents are produced, the Court will usually let you see them and make copies of what you need.

If you think you will need to subpoena documents, it is best to mention this at the first directions hearing, or at any further directions hearings.

For information on how to prepare a subpoena to produce, see Subpoenas.

What do I do once I've completed my affidavits?

Once you have completed your affidavit, you need to file it with the Court.

You can do this:

• online via eLodgment, or
• in person at the registry of the Court that is hearing your case.

For more information, see eLodgment on the Federal Court of Australia website.

If you can’t file your affidavit online, you can file it in person at the registry of the Court that is hearing your case. You will need to file each affidavit with at least three other copies. The originals and the copies will be sealed (stamped) by the Court. You must then serve (give) a copy of each affidavit on your employer. You can serve them at your employer's address for service, which should be on their Response. If they have a lawyer, the address for service will usually be the lawyer's address. You can serve the affidavits in person, by post or by fax.

 Make sure you file and serve your affidavits by the date ordered by the Court. You may not be allowed to use evidence if you file and serve it after the due date.

What happens next?

After you've served your affidavits, your employer will usually have to file and serve their affidavits. They will need to be served on you by the date ordered by the Court.

If the Court made an order about you serving further evidence in reply, this means you can prepare affidavits that deal specifically with the evidence in your employer's affidavits.

For more information on affidavits, see Affidavits.

 Make sure you serve any affidavit in reply by the date ordered by the Court.